RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBERS:  BC-2008-
00538
      INDEX CODE:  100.05
	XXXXXXXXXXXXXXXXXXX			COUNSEL: XXXXXXXXXX

								HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

Her officer performance report (OPR) rendered for the period 
15 June 2001 through 30 April 2002 be set aside and removed from 
her records.  In addition, her Letter of Reprimand (LOR); 
Unfavorable Information File (UIF); and her promotion non-
selection by the CY07A Lieutenant Colonel (Lt Col) Nurse Corps 
Central Selection Board (CSB) and any subsequent non-selection 
by CSB in 2008, along with any separation due to being twice-
deferred, be set-aside; and, that her records be considered by 
Special Selection Board (SSB) for the CY07A Lt Col Nurse Corps 
CSB.  In the event she is selected for promotion by SSB, she 
requests being granted retroactive date of rank with pay and 
allowances, and any other appropriate record corrections.  

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APPLICANT CONTENDS THAT:

The allegations that led to her LOR and subsequent referral OPR 
were frivolous and made without basis in fact, documentary 
support, or prior counseling.  The LOR with mandatory UIF entry 
failed to meet the basic LOR due process requirements by stating 
specifically what the applicant did and the dates for these 
incidents.  In addition, the LOR was not administered in 
accordance with (IAW) Air Force Instruction (AFI) 36-2907, 
paragraph 3.4.1 because, although the applicant was given an 
opportunity to submit rebuttal comments, once a LOR is issued, 
UIF filing is mandatory.  She feels the often hostile work 
environment in nursing may have bred these arbitrary and 
vindictive actions.  The LOR and OPR should be determined to be 
invalid because procedures required by AFI 44-119, Medical 
Quality Operations, were not followed.

In support of her appeal, the applicant provides a statement 
from her counsel; and, copies of her LOR, response to the LOR, 
Referral OPR, request to the Evaluation Review Appeals Board 
(ERAB) to remove the contested report, work schedules, 
memorandum for record, Performance Feedback, character 
references, ERAB decision, Promotion Recommendation, Officer 
Performance Reports, 
Education/Training Report, award and decoration documents, and 
articles on Nursing.  

The applicant’s complete submission, with attachments, is at 
Exhibit A.

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STATEMENT OF FACTS:

According to the Military Personnel Data System, the applicant 
is currently serving on active duty in the grade of major with 
an effective and date of rank of 1 March 2002.  She has a Total 
Active Federal Military Service Date and a Total Active Federal 
Commissioned Service Date of 22 February 1989 and a projected 
date of separation (retirement) of 28 February 2009.  

On 1 April 2002, the applicant received a LOR citing violations 
of Article 86 of the Uniform Code of Military Justice (UCMJ), 
Failure to Go, and Article 92, Dereliction of Duty.  On 4 April 
2002, the applicant responded to the LOR.  After considering the 
applicant’s rebuttal, the commander processed the LOR and a UIF 
was established in accordance with (IAW) AFI 36-2907, 
Unfavorable Information File (UIF) Program.  On 12 June 2002, 
the applicant was notified that her OPR closing 30 April 2002 
was referred.  The applicant acknowledged receipt and provided 
an undated rebuttal to the referral OPR.  

The applicant has two non-selections to the grade of Lt Col by 
the CY07A and CY08A Lt Col Nurse CSBs.  The following is a 
resume of her OPR ratings commencing with the report closing 7 
February 1995:

	PERIOD ENDING				OVERALL EVALUATION

	 7 Feb 95 (Capt)			Meets Standards (MS)
	 7 Feb 96						  MS
	19 Sep 96						  MS
	14 Jun 97						  MS
	12 Dec 97					Training Report (TR)
	14 Jun 98						  MS
	14 Jun 99						  MS
	14 Jun 00						  MS
	14 Jun 01						  MS
	30 Apr 02 (Major)			(Referral Report)	
	30 Apr 03						  MS
	10 Feb 04						  MS
	 7 Jun 05						  MS
	 6 Nov 05						  MS
	 6 Nov 06						  MS

The remaining relevant facts are contained in the advisory 
opinions from the Air Force offices of primary responsibility.  

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AIR FORCE EVALUATION:

AFPC/DPSI recommends denying the applicant’s request to set 
aside her LOR and remove it from her record.  DPSI states that 
after reviewing the case file, they found the LOR was 
administered IAW the governing instruction and the UIF was 
established accordingly.  The applicant was issued an LOR on 1 
April 2002, which listed numerous infractions with corresponding 
dates for each.  On 1 April 2002, the applicant acknowledged 
receipt of the LOR and provided a rebuttal on 4 April 2002.  
After considering the rebuttal, the commander processed the LOR 
and established a UIF IAW AFI 36-2907.  

The complete DPSI evaluation is at Exhibit B.

AFPC/DPSIDEP recommends denial of the applicant’s request to 
remove her referral OPR.  DPSIDEP indicates that on 29 July 
2003, the applicant filed an appeal through the ERAB under the 
provisions of AFI 36-2401, Correcting Officer and Enlisted 
Evaluation Reports.  However, the ERAB was not convinced that 
the report was inaccurate or unjust and denied relief.  The 
applicant received a LOR and UIF for failure to report to duty 
without proper authorization; thereby, making the OPR in 
question accurate.  Making a determination on the validity of 
the LOR/UIF is outside the purview of the ERAB; thereby, making 
the ERAB’s actions in 2003 appropriate.  For the ERAB to 
favorably remove reference to the LOR/UIF, the applicant must 
prove that the statement is inaccurate by proving she did not 
receive the LOR/UIF.  For the ERAB to favorably remove the 
entire OPR requires even more substantial evidence since the 
ERAB will not void a report that can be corrected 
administratively.  Although the applicant is requesting her OPR 
be removed, the gist of the evidence provided is geared at 
proving her innocent of the alleged incidents that led to the 
LOR/UIF and referral OPR.  However, AFPC/DPSI recommended the 
applicant’s request to “set-aside” the LOR be denied.  
Therefore, based on this recommendation, the referral OPR is 
valid as written and in total compliance with governing 
directives.  

The complete DPSIDEP evaluation is at Exhibit C.

AFPC/DPSOO recommends that based on DPSI’s and DPSIDEP’s denials 
to set-aside and remove the LOR/UIF and the 30 April 2002 OPR, 
they recommend denying the applicant’s request for SSB 
consideration.  DPSOO indicates there are no grounds to support 
removal of her nonselections by the CY07A and the CY08A 
promotion 
boards.  As she has over 18 years of service she is considered 
to be in sanctuary and will be retained until she is eligible to 
retire as an officer on 28 February 2009.  

The complete DPSOO evaluation is at Exhibit D.

AFPC/DPAMN (Nurse Utilization and Education Branch) has grave 
concerns about the validity of the LOR content and the fact that 
if the commander truly believed all the allegations in the LOR 
to be true, then why wasn’t action under AFI44-119 invoked.  The 
commander’s allegations that the applicant “jeopardized patient 
care,” “failed to adjust assignments, thus exhibiting poor 
judgment and potentially putting the hospital in a serious risk 
management situation,” “blatant dereliction of duty,” and so on 
should have driven action under AFI 44-119.  In addition, the 
commander stated in the LOR “you will be closely observed in the 
future to ensure that you maintain expected standards;” however, 
this was not a formal monitoring and evaluation plan IAW AFI 44-
119.  It is DPAMN’s opinion that the commander severely 
overreached and overstated many facts in her 
allegations/statements in the LOR.  There was no proven jeopardy 
to patient care at the time she wrote the LOR, and it was 
further disproved in the rebuttal to the LOR, but never 
acknowledged.  To let the unproven allegations in the LOR stand; 
and, drive a UIF and a referral OPR, that was in her Officer 
Selection Record (OSR) to meet upcoming promotion boards, did 
not allow the applicant fair consideration and negatively 
impacted the applicant’s opportunity for promotion.  

The complete DPAMN evaluation is at Exhibit E.  

AFPC/JA recommends denying the applicant’s requests.  JA states 
that the actions taken by the applicant’s command/rating chain 
to impose an LOR and referral OPR were within the commander’s 
discretion and entirely proper.  The applicant has offered no 
evidence – merely the opinions of the applicant and her counsel 
– that the underlying circumstances supporting those actions did 
not occur or were otherwise erroneous.  

JA disagrees with the DPAMN advisory opinion that the imposing 
commander “overreached and overstated many facts in her 
allegations/statements in the LOR;” and, that the applicant was 
denied fair consideration because of “unproven allegations” in 
the LOR and referral OPR.  In reaching their conclusion, DPMAN 
stated that if the commander “truly believed all her own 
statements in the LOR, she would have implemented actions IAW 
AFI 44-119.”  JA indicates the commander did not conclude that 
patient safety had indeed been placed at risk.  The commander 
stated the applicant exhibited poor judgment “potentially 
putting the hospital in a serious risk management situation.”  
(Emphasis supplied.)  The commander was taking action to advise 
the applicant of serious problems with her behavior and to 
correct such behavior before an actual risk management situation 
occurred.  This was not in conflict with AFI 44-119 nor 
otherwise improper.  Moreover, even if the portions of the LOR 
were given DPMAN’s interpretation, the essential factual 
statements documenting failure to go, poor judgment, poor 
leadership style, and conflicts with other personnel were 
nevertheless established without regard to whether patient care 
was ever jeopardized, and this behavior warranted  the 
corrective action (LOR) and documentation (referral OPR) that 
followed.  In addition, AFI 44-119, paragraph 9.7., makes clear 
that “administrative adverse action may be taken against the 
provider regardless of clinical adverse actions.”  Thus, whether 
or not action was taken IAW 44-119, the LOR and referral OPR 
were proper. 

The complete JA evaluation is at Exhibit F.  

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COUNSEL'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel responds that the author of the JA 
advisory opinion quotes from the 2007 version of AFI 44-119.  
The 2001 version of the AFI applies in this case.  Relying on 
the 2007 edition does not simply make the JA opinion confusing; 
rather, the language and standards in the 2007 version are 
substantively different in certain respects.  

The counsel’s rebuttal is at Exhibit H.  

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  The applicant 
challenges the accuracy of events chronicled in her LOR; 
however, she has not offered any objective or credible evidence 
to rebut the version of events offered by her commander.  In 
addition, she contends the LOR and contested OPR were the result 
of bias and not as a result of evidence.  However, while the 
applicant may believe this is the case, there is nothing in the 
evidence provided which would support this contention or lead us 
to believe that the LOR or OPR in question was prepared with any 
motivation on the part of the evaluator other than to report her 
assessment of the applicant’s performance.  

We note the applicant and her counsel contend that her LOR and 
OPR should be determined to be invalid because procedures 
required by AFI 44-149 were not followed.  However, according to 
AFPC/DPMAN, because there were no limitations of the applicant’s 
clinical practice or clinical duties in the Neonatal Intensive 
Care Unit, the concern that AFI 44-119 wasn’t followed is 
unfounded.  We are not persuaded by the evidence provided, that 
the actions taken against the applicant were improper, contrary 
to the provisions of the governing regulations, or that she was 
denied rights to which she was entitled.  In fact, the comments 
provided by the Office of the Judge Advocate points out that the 
statements documenting the applicant’s failure to go, poor 
judgment, poor leadership style and conflicts with other 
personnel, warranted the LOR and referral OPR without regard to 
whether patient care was ever jeopardized.  

We note the counsel’s comments indicating that the author of the 
AFPC/JA advisory mistakenly used the 2007 version of AFI 44-119 
when the applicable version was published in 2001.  However, 
after a thorough review of both the 2001 and 2007 versions of 
the AFI, we feel that while the numbering of chapters and 
paragraphs; and some verbiage, vary slightly, the meaning of 
both AFI’s are similar enough to extract the same intent.  
Accordingly, in the absence of persuasive evidence to the 
contrary, we find no compelling basis to recommend granting the 
relief sought in this application.

4.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issues involved.  
Therefore, the request for a hearing is not favorably 
considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not 
demonstrate the existence of material error or injustice; that 
the application was denied without a personal appearance; and 
that the application will only be reconsidered upon the 
submission of newly discovered relevant evidence not considered 
with this application.

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The following members of the Board considered this application 
in Executive Session on 25 February 2009, under the provisions 
of AFI 36-2603:

			XXXXXXXXXXXXXXXXXX, Panel Chair
			XXXXXXXXXXXXXXXXXX, Member
			XXXXXXXXXXXXXXXXXXX, Member

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2008-00538:

	Exhibit A.  DD Form 149, dated 2 Feb 08, w/atchs.
	Exhibit B.  Letter, AFPC/DPSI, dated 30 Apr 08.
	Exhibit C.  Letter, AFPC/DPSIDEP, dated 4 Jun 08.
	Exhibit D.  Letter, AFPC/DPSOO, dated 6 Aug 08.
	Exhibit E.  Letter, AFPC/DPAMN, dated 2 Sep 08.
	Exhibit F.  Letter, AFPC/JA, dated 18 Sep 08.
	Exhibit G.  Letter, SAF/MRBC, dated 26 Sep 08.
	Exhibit H.  Counsel’s Rebuttal, dated 30 Oct 08.




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									Panel Chair